No. 89-544
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
NELLIE G. TAYLOR, as Personal
~epresentativeof-the Estate
of Jack Leslie Taylor, Deceased,
Plaintiff and Respondent,
JOHN NEIL HONNERLAW,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Linda Osorio St. Peter, Attorney at Law, Missoula,
Montana
For Respondent:
H. James Oleson, Oleson Law Firm, Kalispell, Montana
Submitted on Briefs: March 16, 1990
Decided: April 24, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
John Neil Honnerlaw, defendant, appeals the decision of the
District Court of the Eleventh Judicial District, Flathead County,
granting plaintiff Nellie G. Taylor's motion for summary judgment
and denying Honnerlaw's subsequent llmotionfor reconsideration."
We affirm.
The two essential issues raised on appeal are:
1. whether the District Court erred in granting Nellie
Taylor's motion for summary judgment; and
2. whether the District Court erred in denying Honnerlawls
I1motion for reconsideration.'I
Jack Leslie Taylor died intestate on May 3, 1988. On May 5,
1988, Nellie G. Taylor was appointed by the District Court for the
Eleventh Judicial District, Flathead County, as personal
representative fo; the estate of Jack Leslie Taylor. On October
17, 1988, Nellie Taylor filed a complaint in the District Court,
alleging that John Neil Honnerlaw Ittook various items . . . of
importance, that belonged to Jack Leslie Taylor, and now should
belong to the estate." In particular, Nellie Taylor requested the
return of twelve to thirteen guns which Honnerlaw had in his
possession and refused to return to the estate. Honnerlaw claimed
that these guns were given to him as a gift by the now-deceased
Jack Leslie Taylor.
On March 14, 1989, Nellie Taylor filed a motion for summary
judgment under Rule 56, M.R.Civ.P., arguing that no issue of fact
existed and that as a matter of law Jack Taylor did not give the
guns to Honnerlaw as a gift. The District Court granted Nellie
Taylor's motion for summary judgment, statingthat Honnerlaw failed
to submit an opposing affidavit that would raise any issue of fact.
On June 16, 1989, Honnerlaw filed a ''motion for reconsideration."
The District Court denied Honnerlaw's motion on July 21, 1989.
The first issue raised on appeal is whether the District Court
erred in granting Nellie Taylor's motion for summary judgment.
This issue is not properly before this Court. The notice of
entry of judgment granting summary judgment to Nellie Taylor was
filed June 2, 1989. Honnerlaw had thirty days from this date to
file a notice of appeal. Rule 5(a) (1), M.R.App.P. Honnerlaw's
notice of appeal, however, was not filed until August 7, 1989. We
therefore do not have jurisdiction to entertain this issue on
appeal.
The second issue raised on appeal is whether the District
Court erred in denying Honnerlaw's "motion for reconsideration."
In Honnerlaw's "motion for reconsiderationI1'filed June 16,
1989, Honnerlaw argues that he did not understand that he had to
present affidavits to oppose the motion for summary judgment. He
therefore filed an affidavit from John B. Dudis along with his June
16, 1989 motion. The affidavit stated that Jack Taylor "was
desirous of making certain gifts or bequests to Mr. Honnerlaw and
others, and left me with the impression that he would be doing so."
The District Court denied HonnerlawlsJune 16, 1989 motion on July
21, 1989, stating that Honnerlaw failed to submit an affidavit in
support of his position and furthermore he failed to comply with
the provisions of Rule 60, M.R.Civ.P., in seeking relief from a
summary judgment .
A motion for reconsideration is not a post-judgment motion
allowed by the Montana Rules of Civil Procedure. Anderson v.
Bashey (Mont. 1990), 787 P.2d 304, 305, 47 St.Rep. 200, 202.
Honnerlaw based his ttmotionfor reconsiderationtt the fact that
on
he did not understand that he had to submit an affidavit to oppose
a motion for summary judgment. We are unable to equate Honnerlawts
motion based on his lack of understanding of the Montana Rules of
Civil Procedure with any post-judgment motion allowed under these
rules. We therefore hold that the District Court did not err in
denying HonnerlawtsJune 16, 1989 motion.
In consideration of Honnerlaw appearing pro se throughout the
majority of the proceedings, however, we also note that Dudis's
affidavit is still not sufficient to prove that Jack Taylor
intended to give Honnerlaw his guns. The affidavit stated that
Jack Taylor ttwasdesirous of making certain gifts or bequests to
Mr. Honnerlaw and others, and left me with the impression that he
would be doing so.It The affidavit therefore merely indicated that
Jack Taylor would be making certain gifts or bequests, but had not
yet done so. In addition, the affidavit does not state that these
gifts would be the guns.
,/dkSJ?
Affirmed.
f
m
Justice
We concur:
Justices /B
J